Harvard Law profs challenge federal sex-assault ‘guidance’

CAMBRIDGE – A collection of prominent law school professors, including Harvard’s Alan Dershowitz, shot back at President Barack Obama’s Education Department over its practice of using “Dear Colleague” letters to lay down policy mandates that ride roughshod over Americans’ constitutional rights.

A letter from the educators dated Monday asserts that the department’s civil rights office “has unlawfully expanded the nature and scope of institutions’ responsibility to address sexual harassment” through its directives regarding Title IX, the 1972 law that bans discrimination on the basis of sex in providing access to education. Most people know of Title IX through its effects on women’s collegiate athletics, but it has been applied more recently to things like sexual assault and gender-based issues such as access to sex-segregated facilities.

The professors cite “guidance” issued in 1997 that put sexual harassment under the actions barred by the 1972 law, and say that since then the department “has steadily expanded the definition of sexual harassment and imposed a growing range of responsibilities on colleges to curb such conduct. As a result, free speech and due process on campus are now imperiled.”

The lawyers also cite threats of funding losses used to compel administrators to ditch due process policies in favor of taking a “preponderance of the evidence” approach in handling sex assault claims.

Dershowitz joined three colleagues from Harvard Law School in Cambridge to sign the letter, along with 17 other professors hailing from schools scattered across the country. The letter also quotes one of the signatories, Harvard civil rights expert Elizabeth Bartholet, who called the elimination of due process “madness” in 2014.

The letter also points out that the department’s civil rights office, referred to as OCR, requires schools to define sexual harassment to include “any unwelcome conduct of a sexual nature,” including verbal comments, which it says means administrators must disregard a narrower U.S. Supreme Court definition. They also say the office has effectively voided a Supreme Court ruling that says sexual harassment must involve repeated incidents in guiding schools to act on single instances of harassing conduct.

The professors note that the civil rights office has launched 228 Title IX investigations at 181 universities while “demanding that campus tribunals comply with OCR’s directives.”

Law school professors are not the only professionals questioning the Obama administration’s interpretation of Title IX, as a cadre of Republican senators have begun to ask about the legality of the civil rights office’s mandates.

The letter also points to the 1999 Davis v. Monroe decision, in which the U.S. Supreme Court “defined ‘sexual harassment’ under Title IX as limited to conduct that is ‘severe, pervasive, and objectively offensive.’”

“Through a series of directives and compliance enforcement actions, OCR has dramatically expanded the Davis v. Monroe definition of sexual harassment, thereby exerting a direct and deleterious effect on campus free speech and due process,” the letter claims.

The professors in their letter call not only for a restoration of due process to students and others on campus, but also for elected officials and civil rights administrators to clarify whether the “Dear Colleague Letters” and advisories are merely intended to guide school officials or constitute iron-clad requirements.

The civil rights office, the professors say, “characterizes these directives as ‘guidance’ documents, which by definition consist of policy recommendations and suggested actions. Guidances do not constitute ‘administrative regulation,’ nor do they possess ‘the status of law,’” the educators say. “The majority of these directives did not undergo notice and comment procedures, which the Administrative Procedure Act (APA) requires for all proposed regulations.”

The distinction between “guidance” and “requirement” reared its head recently when White House spokesman Josh Earnest answered questions about a “Dear Colleague” letter from the Education and Justice Departments regarding Title IX’s role in the ongoing debate over access to sex-segregated public facilities, including bathrooms and locker rooms, based on self-selected “gender identity.”

Earnest repeatedly insisted that the message from the Obama administration equated to “guidance” although the letter itself points out that school districts refusing to adhere to the directives face the loss of federal funding.

Meanwhile, the decision by colleges and universities to strip accused perpetrators of their due process rights is also fueling a surge in lawsuits.

Recently, a federal judge in Massachusetts rejected Brandeis University’s bid to have a lawsuit tied to allegations of sexual misconduct dismissed. The Waltham school had punished a student after a former boyfriend claimed that the student had made unwanted sexual advances at various points during their relationship.

In ruling against the school, U.S. District Court Judge F. Dennis Saylor IV ripped Brandeis for “appear[ing] to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process.”

At the Education Department, the civil rights office’s new interpretation has prompted other students to sue in federal courts, claiming that their schools failed to follow the government’s directives for handling sex harassment. In March, a Harvard University graduate sued, asserting that school administrators failed to treat her claims of sexual assault at the hands of an ex-boyfriend in accordance with “requirements” laid out in the 2011 Dear Colleague letter from the civil rights office.

At Yale University in New Haven, Connecticut, a senior who was expelled after administrators followed the 2011 procedures in handling a disputed sex assault claim, has threatened to sue.